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  • Posted on: Mar 12 2021

Disclosure in New York State court litigation is governed by Article 31 of the Civil Practice Law and Rules.  In general, there “shall be full disclosure of all matters material and necessary in the prosecution or defense of an action, regardless of burden of proof….”  CPLR 3101.  “The words, ‘material and necessary,’ are … to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.”  Allen v. Crowell-Collier Publishing Co., 21 N.Y.2d 403, 406 (1968); see also, Vargas v. Lee, 170 A.D.3d 1073 (2nd Dep’t 2019) (relying on , and quoting from Allen.)  CPLR 3101 “embodies the policy determination that liberal discovery encourages fair an effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise.”  Forman v. Henkin, 30 N.Y.3d 656, 661 (2018) (citation and internal quotation marks omitted).

In light of the important role disclosure plays in the orderly progress of the litigation process, the CPLR provides remedies for the failure to comply with disclosure.  One such example is CPLR 3124, which provides that “[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article, except a notice to admit under section 3123, the party seeking disclosure may move to compel compliance or a response.”  (Hyperlink added.)  More significantly, however, CPLR 3126, which permits a court to impose hefty sanctions for discovery abuses, provides:

If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party’s control, refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them:

1. an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or

2. an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or

3. an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.

It is recognized that the penalties listed in CPLR 3126 “were not intended to be exhaustive” and the “practice commentaries to CPLR 3126 encourage the courts to exercise their ingenuity, and to devise sanctions as narrowly tailored as possible to the circumstances of the individual case.”  DiDomenico v. C&S Aeromatik Supplies, Inc., 252 A.D.2d 41, 49 (2nd Dep’t 1998).

On March 10, 2021, the Appellate Division, Second Department, decided Nationstar Mortgage, LLC v. Jackson, in which the Court affirmed supreme court’s order “striking … [borrower]’s counterclaims and precluding … [borrower] from offering certain evidence.”  Nationstar is a mortgage foreclosure action.  While the factual history was somewhat involved, same is not germane to the subject of this article.  Suffice it to say, borrower asserted counterclaims pursuant to RPAPL 1501(4) to discharge the mortgage on statute of limitations grounds.  [This BLOG has treated RPAPL 1501(4) [HERE] and [HERE] and issues surrounding statutes of limitations in mortgage foreclosure actions [HERE], [HERE] and [HERE].]

Lender moved to strike borrower’s answer and counterclaims pursuant to CPLR 3126 “for failure to provide any disclosure or, in the alternative, to compel disclosure.”  Lender also filed a note of issue and certificate of readiness.  Borrower, in turn, cross-moved for summary judgment dismissing the complaint and on its eighth counterclaim, “which was to cancel and discharge of record the mortgage pursuant to RPAPL 1501(4), based on statute of limitations.”  “Supreme Court denied the [borrower]’s cross-motion and granted the [lender]’s motion to the extent of striking the [borrower]’s counterclaims and precluding the [borrower] from offering any evidence that should have been provided in response to the discovery requests served by the [lender].”

As to the law related to CPLR 3126, the Nationstar Court stated:

Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading or preclusion of evidence, where a party ‘refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed.  The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the. Although public policy strongly favors that actions be resolved on the merits when possible, a court may resort to the drastic remedies of striking a pleading or precluding evidence upon a clear showing that a party’s failure to comply with a disclosure order was the result of willful and contumacious conduct  The willful or contumacious character of a party’s conduct can be inferred from the party’s repeated failure to respond to demands or to comply with discovery orders, and the absence of a reasonable excuse for these failures, or by the failure to comply with court-ordered discovery over an extended period of time.  (Citations and internal quotation marks omitted.)

The Nationstar Court found that borrower’s “wilful and contumacious” conduct could be inferred “from its repeated failure to comply with discovery demands for more than a year, its failure to comply with the deadlines set forth in a compliance conference order, and the absence of any excuse offered for such failures.”  (Citations omitted.)  The Court also found that lender’s filing of the note of issue and certificate of readiness, did not operate as waiver of “its objection to [borrower’s] failure to meet its disclosure obligations … since [lender’s] motion seeking discovery sanctions pursuant to CPLR 3126 was pending prior to the date [lender’ filed the note of issue.”


Discovery deadlines and orders should be taken seriously by litigants lest they be on the receiving end of a significant sanction such as the striking of a pleading or a preclusion order.  

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